The Delhi High Court on Tuesday issued notice in a couple of writ petitions seeking marriage equality for same-sex couples in India.
Filed by Dr Kavita Arora, who has been living with her partner Ankita Khanna for 8 years, the petition seeks a direction to be issued to the Marriage Officer, South East Delhi, to solemnize their marriage under the Special Marriage Act.
It is the case of the Petitioners that the fundamental right to choose one's own partner for marriage under Article 21 of the Constitution extends to same-sex couples as well.
Any contrary reading, it is argued, would violate the equality before law and would go against the spirit of the Supreme Court's judgement in Navtej Singh Johar v. Union of India.
The petition states that:
'The law bestows a myriad legal rights and protections in matters of succession, taxation, insurance, maintenance, pension, health and marital privileges that are unavailable to unmarried couples. The Petitioners are deprived of all the legal rights and social benefits that flow from the institution of marriage as the SMA excludes same-sex couples.' It is submitted by the Petitioners that what they seek is not the right to be left alone, but the right to be acknowledged as equals and to be embraced with dignity by the law.
It is further argued that the Navtej Johar judgment has held that sexual orientation places a positive and negative obligation on the State, which includes non-discrimination under Article 15 of the Constitution.
'The right to choose a marital partner is a positive obligation of the State to be fulfilled through its existing marriage laws. Excluding same-sex marriage from a legislation governing civil marriage outside personal law renders the SMA violative of constitutional guarantees of dignity, liberty, and equality', the petition claims.
The Petitioner in this case was represented by Senior Advocate Menaka Guruswami, Ms Arundhati Katju, Mr Govind Manoharan, and Ms Surabhi Dhar.
Thread on the updates from the hearing may be read below :
Hearing on a plea seeking marriage equality for the same-sex couples begins before the DB of Justice Rajiv Sahai Endlaw and Justice Asha Menon at the Delhi HC@MenakaGuruswamy @arundhatikatju #LGBTQIA pic.twitter.com/wqUKXYlOJs— Live Law (@LiveLawIndia) October 14, 2020
Hearing on a plea seeking marriage equality for the same-sex couples begins before the DB of Justice Rajiv Sahai Endlaw and Justice Asha Menon at the Delhi HC@MenakaGuruswamy @arundhatikatju #LGBTQIA pic.twitter.com/wqUKXYlOJs